What Smartphone Makers Can Learn From the Sewing Machine Patent War

The smartphone market is highly lucrative, has many competing players, and involves countless patents. In other words, it’s a recipe for lawsuits. In the last month alone, Microsoft lobbed a suit at Motorola, who in turn sued Apple. Nokia and HTC both have sued Apple, and Apple has sued both Nokia and HTC.

The web of competing claims on smartphone technology might seem a uniquely 21st-century problem. But according to legal scholar Adam Mossoff, the smartphone woes are reminiscent of a forgotten 19th century legal melee: the Sewing Machine War.

An advertisement for the Singer Sewing Machine from 1853.

The sewing machine was “the first complex consumer product that arose through incremental inventions,” says Mossoff, a law professor at George Mason University and the author of a forthcoming article in the Arizona Law Review on the Sewing Machine War.

The sewing machine is so familiar to us that we readily think of it as the discrete unit it eventually became. But a sewing machine is actually a combination of ten different inventions developed and patented over a period of more than a century, including the lockstitch, the eye-pointed needle (patented in 1755 by Charles F. Weisenthal) and a straight, vertically positioned needle (added by the American Isaac Meritt Singer in 1850).

Singer in 1850 combined his predecessors’ inventions with his own to create the first practical and commercially successful sewing machine.

The various holders of competing patents weren’t elated about Singer’s success, and they responded by launching a web of lawsuits. American inventor Elias Howe, who had patented his own sewing a few years prior, fired off the first suit at Singer’s company. Others joined the fray with their own suits against both Singer and other sewing machine companies, and thus began the Sewing Machine War.

The Sewing Machine War was the first instance of what is today called a “patent thicket.” The disputes prevented Singer from selling his invention, and tensions ran high in and out of court: When Howe personally called on Singer, Singer threatened to throw him down a flight of stairs.

But there’s a happy ending to the story, as your machine-stitched clothes evince. The Sewing Machine War ended with a just and lasting peace in 1856, when Orlando B. Potter–a lawyer representing one of the plaintiffs–suggested a solution that Mossoff calls “groundbreaking but also breathtakingly simple”: The patent-holders would combine their patents in a “patent pool” and share the profits from selling the machines. The patent pool participants lived happily and wealthily ever after—or at least until 1877, when the last patent expired.

Mossoff takes several lessons from this historical example. First, he notes that despite the litigation, the smartphone market isn’t caught in a patent thicket yet, with production and marketing held up indefinitely as happened with the sewing machine. There are, of course, thousands of smartphones for sale, and new ones being developed.

Second, even if it gets to that point, it wouldn’t necessarily be cause for alarm. “If our intuition says, ‘The sky is falling,’ we can say, ‘OK, but did the sky fall in the 1850s?’” Though anti-trust legislation today would likely render a smartphone patent pool an impossibility, the fact remains that lawsuits are often no more than an invitation to negotiation. “Oftentimes the way a party signals to another party in one’s industry, ‘I’m serious about this–you need to speak with me,’ is by filing a lawsuit,” says Mossoff.

And most companies do reach amicable licensing agreements where they use one another’s technology for a fee. “The average cell phone has thousands of patents owned by entities that have licenses with each other,” says Mossoff. Earlier this month, for instance, Microsoft licensed patents by Palm, Palmsource, Bell Communications Research, and Geoworks.

So while the maze of patent lawsuits might seem like wasteful litigation, Mossoff cautions that the opposite might very well be true. Those who defend the patent system and intellectual property rights argue that it encourages innovation by ensuring that inventors get their due. “What the patent system is about is not what’s happening today or yesterday, but what’s going to happen tomorrow,” says Mossoff.